Jacobs v. Cauthorn, No. 22420.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtReeves
Citation238 S.W. 443,293 Mo. 154
PartiesJACOBS et al. v. CAUTHORN at al.
Docket NumberNo. 22420.
Decision Date18 February 1922
238 S.W. 443
293 Mo. 154
JACOBS et al.
v.
CAUTHORN at al.
No. 22420.
Supreme Court of Missouri, Division No. 2.
February 18, 1922.
Motion for Rehearing Overruled March 18, 1922.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

Action for injunction by F. P. Jacobs and others against Ross B. Cauthorn and others. From a judgment dismissing the plaintiffs' bill, plaintiffs appeal. Reversed and remanded.

Injunction to restrain the levying and ex" tending of a tax for the building and repair fund of consolidated school district No. 1 of Audrain county, Mo., upon the ground that

[238 S.W. 444]

said tax, as voted by the legal voters of the district, is illegal.

The petitioners are qualified voters of the district, and the defendants were the county clerk of Audrain county and the directors of said district, six in number. Said district was a consolidation of parts of four other districts and is known to the law as a "town district" (State ex rel. v. R. R., 263 Mo. 389, 174 S. W. 64), as it Included the town of Farber, together with other appropriate contiguous territory.

Plaintiffs were cast below and have duly prosecuted their appeal to this court complaining that the court erred in refusing to grant the relief prayed for and for dismissing their bill. Other complaints will be noted in the course of the opinion. The petition, after alleging that plaintiffs were resident taxpaying citizens and legal voters of said district, averred that on the 13th day of March, 1920, notices were given of the annual meeting of the qualified voters of said district to be held on the 6th day of April, 1920, and that said notices specified the following, among other things, to he considered:

1. To vote a nine months' school.

2. To vote 60 cents in excess of 40 cents tax on $100 valuation as prescribed by law.

3. To vote 25 cents building and repair fund.

4. To elect two directors for a term of three years.

That at said meeting a printed ballot was delivered to said voters for their use, which read with respect to the "building and repair fund" as follows, "To vote twenty-five cents building and repair fund,"? and, "Against twenty-five cents building and repair fund"; that upon a vote on said proposition 99 votes were cast for it and 84 votes against it; that said proposition was not carried by two-thirds of the votes cast by the maned voters voting at said election; that the clerk of the said school board did not certify, as required by law, the result of such vote and the rate of taxation so voted, but only addressed a letter to the county clerk reciting as follows:

"Below is result of Farber Consolidated Dist. No. 1 election held April 6th, 1820. Levy voted and carried $1.25 for school purposes on $100 " valuation (which consisted of $1.03 teacher fund and 25 cents building and repair fund)."

That the board of directors of said district had no legal right or authority to make an estimate for such an assessment, and that said board had not forwarded to the said county clerk legal estimates, and that without such action said county clerk had no legal right to make such assessment and levy and extend such tax on the property of the district including the property of the plaintiffs; that there was no legal authority to vote an increase on said school district for a "building and repair fund"; that said 25 cents tax was not legal because not founded upon a petition by at least ten taxpaying citizens of said district; that it was illegal because of insufficiency of the notice; that the ballots employed were illegal; that it did not carry by a two-thirds vote of the voters; that the board of directors did not make an estimate as required by law and that said tax "has not been legally established."

It was then averred that the county clerk was about to levy and extend said tax of 25 cents, and that same being illegal would cast clouds and place liens on the property of plaintiffs, and that the defendants generally were threatening to levy such illegal tax, all to becloud the title "of the plaintiffs and other property owners in said district and cause a multiplicity of law suits." There was an appropriate prayer for a restraining order upon the defendants, which prayer concluded as follows: "And for such other and further relief as to the court shall seem meet and just." The answer was a general denial.

The testimony supported the allegations of the petition, except that it appeared that a proper estimate as required by section 11142, R. S. 1919, had been submitted to the county clerk by the board of directors before May 15th. At the conclusion of the evidence the court dismissed the plaintiffs' bill.

Fry & Fry, of Mexico, Mo., for appellants. R. D. Rodgers and J. W. Buffington, both of Mexico, Mo.; for respondents.

REEVES, C. (after stating the facts as above).


As will appear from the foregoing statement, tie chief complaint of appellants in their bill was directed against the "25 cents building and repair fund" and mainly on account of the manner of authorization. Their complaint that the proposition should have been supported by a petition of ten taxpayers of the district is not tenable, as section 11152, R. S. 1919, specifically grants to the board of directors the right, when such board deems it necessary, to submit the question of increase of the annual rate of taxation for repairing and furnishing school buildings, and the same section permits said increase for...

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23 practice notes
  • State ex rel. Fire Dist. of Lemay v. Smith, No. 39048.
    • United States
    • United States State Supreme Court of Missouri
    • January 2, 1945
    ...288 Mo. 1, 231 S.W. 263; State ex rel. Marlowe v. Himmelberger-Harrison Lbr. Co., 332 Mo. 379, 58 S.W. (2d) 750; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443; Horsefall v. School Dist. City of Salem, 143 Mo. App. 541, 128 S.W. 33. (28) The proposition to authorize the District to incur ind......
  • State ex rel. Carpenter v. St. Louis, No. 28285.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...Kansas City, 283 Mo. 283; Kenton Water Co. v. City of Covington (Ky.), 161 S.W. 988; Harrington v. Hopkins, 288 Mo. 1; Jacobs v. Cantharn, 293 Mo. 154. (g) The Kansas City and St. Louis police department cases relied upon by relators hold that the statutes passed upon in those cases do not ......
  • Rathjen v. Reorganized School Dist. R-II of Shelby County, R-II
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1955
    ...263, 265: 'The language of the section just quoted is too plain to need construction.' The Harrington case as well as Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443, and State ex rel. Marlowe v. Hemmelberger-Harrison Lumber Co., 332 Mo. 379, 58 S.W.2d 750, all involved the question of whethe......
  • Kansas City P. & L. Co. v. Carrollton, No. 37025.
    • United States
    • Missouri Supreme Court
    • September 16, 1940
    ...we have held it proper to consider pertinent constitutional provisions even though not mentioned in the pleadings. [Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 154.] The question was ably and earnestly 142 S.W.2d 856 argued by both parties on the constitutional ground. Now, after an unfavorab......
  • Request a trial to view additional results
23 cases
  • State ex rel. Fire Dist. of Lemay v. Smith, No. 39048.
    • United States
    • United States State Supreme Court of Missouri
    • January 2, 1945
    ...288 Mo. 1, 231 S.W. 263; State ex rel. Marlowe v. Himmelberger-Harrison Lbr. Co., 332 Mo. 379, 58 S.W. (2d) 750; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443; Horsefall v. School Dist. City of Salem, 143 Mo. App. 541, 128 S.W. 33. (28) The proposition to authorize the District to incur ind......
  • State ex rel. Carpenter v. St. Louis, No. 28285.
    • United States
    • United States State Supreme Court of Missouri
    • January 18, 1928
    ...Kansas City, 283 Mo. 283; Kenton Water Co. v. City of Covington (Ky.), 161 S.W. 988; Harrington v. Hopkins, 288 Mo. 1; Jacobs v. Cantharn, 293 Mo. 154. (g) The Kansas City and St. Louis police department cases relied upon by relators hold that the statutes passed upon in those cases do not ......
  • Rathjen v. Reorganized School Dist. R-II of Shelby County, R-II
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1955
    ...263, 265: 'The language of the section just quoted is too plain to need construction.' The Harrington case as well as Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443, and State ex rel. Marlowe v. Hemmelberger-Harrison Lumber Co., 332 Mo. 379, 58 S.W.2d 750, all involved the question of whethe......
  • Kansas City P. & L. Co. v. Carrollton, No. 37025.
    • United States
    • Missouri Supreme Court
    • September 16, 1940
    ...we have held it proper to consider pertinent constitutional provisions even though not mentioned in the pleadings. [Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 154.] The question was ably and earnestly 142 S.W.2d 856 argued by both parties on the constitutional ground. Now, after an unfavorab......
  • Request a trial to view additional results

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